Terms of Use and Licensing Agreement

The terms and conditions of this License Agreement are entered into by and between you “you”, the recipient and user of the Pinch VR Software Development Kit (the SDK), plugins, extensions and/or the user of the Pinch VR Application Program Interface (the API), and Pinch VR, Inc. (Pinch VR). The API specifically includes all routines, protocols, and tools for building software interoperable with systems and devices developed by Pinch VR. The SDK specifically includes the API as well as all Pinch VR system files, data structures, Unity3D plugins or extensions, object classes, remote calls, packaged APIs, add-ons, libraries, documentation and hardware provided to you. The API and/or the SDK are licensed to you subject to the terms of this License Agreement.

1. INTRODUCTION

The API, extensions, plugins, and/or the SDK are licensed to you subject to the terms of this License Agreement. You acknowledge that this License Agreement supersedes any other agreement by which you may have obtained access to the API and/or the SDK. You may not use the API or the SDK if you do not accept the terms of this License Agreement. By your use of either the API or the SDK, you hereby agree to the terms of this License Agreement. You may not use the API or the SDK if you are legally barred from doing so under the laws of Canada, the country in which you are resident, or from which you use the API or SDK. If your use of the API or SDK requires that you agree to be bound by the terms of this License Agreement on behalf of your employer or another legal entity, you represent and warrant that you have sufficient legal authority to bind same.

2. system

2.1Subject to the terms and conditions of this License Agreement, Pinch VR grants you access to the API, plugins, extensions, and/or the SDK (referred to as the Pinch VR System) as well as a limited, worldwide, royalty-free, non-assignable, non-exclusive, and non-sublicensable license to use the Pinch VR System solely to develop software applications compatible with Pinch VR’s hardware and software platforms (the Purpose). You also agree and acknowledge that the Pinch VR System includes or embodies trade secrets belonging to Pinch VR, including, but not limited to, machine vision methods for detecting hand gestures in a low computational overhead/high accuracy fashion.

2.3You acknowledge that the Pinch VR System may only be accessed by persons, natural or legal, that have agreed to the terms of this License Agreement. Consequently, you undertake only to take reasonable measures to ensure that no person obtains access to the Pinch VR System, or any component thereof provided to you, without prior acceptance of the terms of this License Agreement (such a person shall be referred to herein as an Unauthorized Person).In the event that you become aware that an Unauthorized Person has accessed any component of the Pinch VR System, or that any component of the Pinch VR System is being offered to any Unauthorized Person, you agree notify Pinch VR of such Unauthorized Person in writing within five (5) days. You further acknowledge that Pinch VR maintains the right to, at its sole discretion, designate any person as an Unauthorized Person and that Pinch VR maintains the right to exclude any Unauthorized Person from any license to any component of the Pinch VR System.

2.4You acknowledge that the Pinch VR System is provided on an “as is” basis and is not subject to any defined service levels. Pinch VR will provide notice to you in advance of any scheduled maintenance periods, upgrades, and/or enhancements that may affect system operation, but will not be required to modify its plans or schedules on your account. Absent any written consent from Pinch VR, you shall not undertake any upgrade, repair, reconstruction, reverse engineering, or enhancement activities in relation to the Pinch VR System.

2.5You may not rent, lease, sell, sublicense, assign, or otherwise transfer, or reverse engineer, disassemble or decompile any part of the Pinch VR System.

2.6All results of any test or evaluation of the Pinch VR System and any related information shall be deemed Confidential Information; you may not disclose such information to any third party without Pinch VR’s prior written approval.

2.7Pinch VR reserves all rights not expressly granted to you.

2.8You may not use any part of the Pinch VR System for any purpose other than the Purpose without Pinch VR’s prior written approval. Without limiting the foregoing, you agree that you shall not use the Pinch VR System, or any Confidential Information, including trade secrets embodied in the Pinch VR System, for any development purposes not included in the Purpose. You agree and acknowledge that the use of the Pinch VR System, or Confidential Information or trade secrets embodied therein other than for the Purpose shall be a breach of confidence or misappropriation of confidential information.

2.9You agree to comply with any reasonable security measures or safeguards as Pinch VR may require from time to time in order to protect Pinch VR’s intellectual property, Confidential Information or trade secrets, including providing access to portions of your source code underlying implementations and/or integrations of the Pinch VR System or any part thereof into your project.

2.10You acknowledge that each Pinch VR SDK is associated with a unique identifier and you further agree that you shall not alter, translate, transpose, copy, reproduce, disseminate, reverse engineer, tamper with, or otherwise alter any such unique identifier (thereby creating a Modified Identifier) or any authentication system interoperable with said unique identifier (thereby creating a ModifiedAuthentication System) such that the Pinch VR System becomes operable with hardware unit(s) not provided to you by Pinch VR. You further agree that undertaking, or enabling, any commercial use of any component of the Pinch VR System with such a Modified Identifier or Modified Authentication System is a violation of the terms of this License Agreement. For the purposes of this provision, “commercial use” shall mean any deployment of any component of the Pinch VR System on more than one (1) hardware unit, whereas “personal use”, as opposed to commercial use, shall mean deployment of any component of the Pinch VR System on no more than one (1) hardware unit. For greater clarity, personal use shall not violate this provision.

3. Ownership

Pinch VR and its suppliers retain all rights, title and any other interest in and to the Pinch VR System and its component parts. No rights of ownership or any licence to use the Pinch VR System or any part thereof is transferred except as specifically stated herein. All other rights are reserved by Pinch VR and its suppliers. You agree that nothing in this License Agreement obligates either you or Pinch VR to enter into any further agreement with respect to the subject matter of this License Agreement, or otherwise. For certainty, nothing in this Agreement provides you any right to use or exploit: (a) any specific methodology disclosed to you under any trade secret or as part of any technology of Pinch VR; or (b) any specific implementation of any trade secret of Pinch VR.

4. Feedback

Each party may from time to time provide to the other party feedback or suggestions regarding the technology or Confidential Information of the other party, which may include suggestions for, or feedback concerning, improvements, modifications, corrections, enhancements, derivatives or extensions, as well as technology ideas (Feedback). You agree that Pinch VR, upon receiving such Feedback, shall be granted a perpetual, royalty-free, exclusive, and transferable license to use such Feedback, which is to be treated as Confidential Information herein, without any obligation to compensate you or your personnel for providing the Feedback. Pinch VR, upon receiving Feedback, may develop technology, modifications, corrections, enhancements, derivatives or extensions (Improvements), and may also develop technology based on such Feedback. You agree that such Improvements and technology, and any intellectual property rights related thereto, as well as any related intellectual property registrations, shall be owned exclusively by Pinch VR. You agree to sign such documents, and undertake to complete such tasks, as may be reasonably required to confirm and evidence such ownership by Pinch VR. Due to the nature of development work, Pinch VR System errors or discrepancies you report may or may not be corrected by Pinch VR.

5. TERM

This Agreement will terminate upon the earlier of the date that is: (a) thirty (30) days after Pinch VR has given public notice of the termination of this License Agreement (for further clarity such public notice may be given by electronic mail or posting on Pinch VR’s publicly available website) after the date of this Agreement; and (b) ten (10) business days after written notice of termination is given by either party with or without cause. Upon termination of this License Agreement, you will: a) return any hardware, tangible documentation or other tangible information provided by Pinch VR under this License Agreement; and b) destroy any information or documentation provided by Pinch VR under this License Agreement that you may possess in any intangible electronic form, including without limitation all Confidential Information, regardless of any provision of any Non-Disclosure Agreement.

6. COST OF EVALUATION AND TESTING

There is no charge to you or to Pinch VR for evaluating and testing the Pinch VR System, and each party will be responsible for all of its own expenses. For greater certainty, evaluation and testing does not include deployment, dissemination, sale, or otherwise making available any component of the Pinch VR System to any third party.

7.Compliance and Security

7.1You shall, at all times during which you are subject to this License Agreement, comply with applicable laws. Without limiting the generality of the foregoing, you undertake to obtain and maintain all necessary consents to conduct your business in compliance with the Personal Information Protection and Electronic Documents Act (PIPEDA) or other similarly applicable federal, provincial, or state privacy legislation. You represent and warrant that, where applicable, you have adopted, implemented, and shall maintain throughout the term of this License Agreement, a corporate information security program designed to comply with applicable laws and protect customer information, materials and data (Customer Data) from loss, misuse and unauthorized access or disclosure. You warrant and represent that all Customer Data stored or transmitted via the Pinch VR System shall comply with all applicable laws and appropriate information security practices.

7.2Use of Service. You agree not to use or access the Pinch VR System in any manner that interferes with or harms the Pinch VR System infrastructure, or harms any third parties, or is tortious or violates any third party right. You further agree that you will not engage in any activity with the Pinch VR System, including the development or distribution of an application that interferes with, disrupts, damages, or accesses the servers, networks, or other properties or services of any third party in an unauthorized manner. You agree to defend, indemnify and hold Pinch VR harmless from third party claims, losses, damages, liabilities, costs and expenses, including, without limitation, reasonable attorneys' fees arising from non-compliance with the preceding sentence.

8.SUPPORT and MAINTENANCE

Pinch VR will make reasonable efforts to provide basic support on an “as needed” basis to facilitate your use of the Pinch VR System, but Pinch VR is not obligated to provide you with any other technical support, maintenance, bug-fixes, workarounds, upgrades or updates to the Pinch VR System.

9. Purpose

10. Confidentially

10.1"Confidential Information" means any information of the parties or their affiliated companies in whatever form or medium (and includes any copies of such information that you are authorized by this License Agreement to make), whether proprietary or confidential. Confidential Information also includes any such information relating to the Parties’ business activities, customers, suppliers or other business partners, financial affairs, technology, marketing or sales plans, including, without limitation, information, designs, know-how, trade secrets, configurations, binaries, coordinate data, business plans exchanged by the parties in the formation and implementation of this License Agreement, including the terms hereof, as well as all test results and Feedback you may provide related to the Pinch VR System. Confidential Information will also include information that is specifically identified as confidential prior to or at the time of its disclosure or would generally be considered confidential in the industry of the party disclosing the Confidential Information (Discloser), and information directly or indirectly disclosed or to which the recipient is otherwise provided access by Discloser or on Discloser’s behalf. Confidential Information shall not include information which: (i) has become, at the time of the disclosure, public knowledge through no breach of this License Agreement by recipient; or (ii) is already known or is independently developed by recipient without use of the Confidential Information.

10.2Except as specifically provided herein, you shall hold Confidential Information in strict confidence. You shall use and reproduce the Confidential Information only to the extent reasonably required to fulfill the Purpose. You shall not make, adapt, reverse engineer or create any derivative work or product based upon or derived from or which uses of all or any part of the technology in respect of the Pinch VR System. Further, you shall not make any notes, transcriptions, or memoranda in any material or tangible form that reproduce all or any part of the Pinch VR System. It shall not be a breach of the your obligations if the you provide access to Confidential Information to, and authorize the use and reproduction of the Confidential Information as is reasonably required to fulfill the Purpose by: (a) your wholly owned subsidiaries (Subsidiaries); and/or (b) your employees (Employees), provided that you are vicariously liable for the failure of any Subsidiary and/or Employee to whom Confidential Information is disclosed to comply with your obligations under this License Agreement and further provided that the Subsidiary and/or Employee: (i) has a need to know the Confidential Information to fulfill the Purpose; and (ii) has entered into a confidentiality agreement with you with terms that afford no less protection to the Confidential Information than the terms herein. You shall not use any Residual Information for any purpose whatsoever, including without limitation, the development of your own products or business. For the purposes of this Agreement, “Residual Information” shall mean any Confidential Information of Discloser that may be retained in intangible form in the minds of any of your Employees who have had access to such Confidential Information.

10.3You may disclose Confidential Information if: (i) you are required to do so by law provided that you give the Discloser sufficient notice to enable it to seek an order limiting or precluding such disclosure, and provided that such disclosure is limited to the extent required to fulfil with such legal requirement; or (ii) Discloser gives its prior written authorization to do so which is signed by an officer of Discloser. You agree that except to the extent that Discloser is expressly precluded by law from prohibiting youfrom doing so, you shall not alter, modify, adapt, create derivative works, translate, deface, decompile, disassemble, convert into human readable form, or reverse engineer all, or any part, of any materials to which you are provided access by Discloser. Each party will take all reasonable precautions to protect the other party's Confidential Information, using at least the same standard of care as it uses to maintain the confidentiality of its own Confidential Information.

10.4You shall abide by all security and confidentiality procedures communicated to you by Discloser. Further, you shall limit your access to those parts of the Pinch VR System that are essential for the Purpose.

10.5The Pinch VR System, and all of its components and features, (including but not limited to the existence or features of the Pinch VR System, results of Pinch VR System use or testing, Pinch VR System performance, or comparison of the Pinch VR System to any other released or unreleased product) is proprietary and deemed to be Confidential Information of Pinch VR and its suppliers. Except as expressly stated herein, you agree not to disclose or provide any of the Pinch VR System, documentation, or information relating to the Pinch VR System to any third party except in compliance with this License Agreement.

10.6The provisions of this License Agreement relating to Confidential Information shall survive any termination or expiration of this License Agreement.

11.DISCLAIMER OF WARRANTIES

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PINCH VR AND ITS SUPPLIERS PROVIDE THE PINCH VR SYSTEM AND ANY SUPPORT SERVICES "AS IS" AND WITH ALL FAULTS, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, COMPATIBILITY OF SOFTWARE OR EQUIPMENT, OR ANY RESULTS TO BE ACHIEVED THEREFROM. PINCH VR MAKES NO WARRANTIES OR REPRESENTATIONS THAT ANY ASPECT OF THE PINCH VR SYSTEM WILL BE FREE FROM LOSS OR LIABILITY ARISING OUT OF HACKING OR SIMILAR MALICIOUS ACTIVITY OR ANY ACT OR OMISSION OF RECIPIENT. THE ENTIRE RISK AS TO THE QUALITY OF, OR THE USE OR PERFORMANCE OF, THE PINCH VR SYSTEM AND SUPPORT SERVICES, IF ANY, REMAINS WITH YOU.

12. Remedies

You agree that the unauthorised disclosure or use of the Pinch VR System or the breach of your other obligations herein will cause irreparable harm and significant injury for which money damages will be inadequate and impossible to ascertain. Accordingly, you agree that Pinch VR should be entitled to obtain interim, temporary, preliminary, interlocutory, final and permanent injunctive relief restraining you from breaching, and requiring you to comply with, your obligations under this Agreement. You hereby acknowledge the importance to Pinch VR of strict compliance with the terms of this License Agreement and acknowledge that Pinch VR’s interest in the strict enforcement thereof will outweigh the balance of convenience or harm which you may suffer as a result of the strict enforcement of your obligations under this License Agreement.

13.LIMITATION OF LIABILITY AND REMEDIES

NEITHER PINCH VR NOR ITS AFFILIATES, CONTRACTORS, SUPPLIERS OR AGENTS, SHALL BE LIABLE FOR ANY DIRECT OR INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, PUNITIVE, CONSEQUENTIAL DAMAGES, ANY LOST OR IMPUTED PROFITS OR REVENUES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, AND REGARDLESS OF WHETHER PINCH VR HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY.

14. SEVERABILITY

If a court or other lawful authority of competent jurisdiction declares any provision or section of this License Agreement invalid, illegal or unenforceable, this License Agreement will continue in full force and effect with respect to all other provisions and sections and all rights and remedies accrued under such other provisions and sections will survive any such declaration.

15.NO ASSIGNMENT

You may not assign this License Agreement, nor may any of your rights hereunder be assigned or otherwise transferred to any third Person, without Pinch VR’ prior written consent in each case. Any attempted or purported assignment or other such transfer by you to any third party without Pinch VR’ consent shall be void. Subject to the foregoing, this License Agreement shall be binding upon and inure for the benefit of the parties and permitted assigns, and no other person shall acquire or have any rights under this Agreement.

16.Indemnity

You will hold harmless, defend and indemnify Pinch VR and its affiliates, contractors, suppliers or agents, and each of its employees, officers, directors, agents, and subcontractors from and against any actual or threatened claims, lawsuits, or demands of any third party that may arise from your use of the Pinch VR System, other than in respect of the consent requirements relating to any personal information of any individual or entity.

17.GOVERNING LAW

This Agreement will be governed by the laws of the Province of Ontario, Canada without regard to conflicts of laws, and you and Pinch VR irrevocably consent to the exclusive jurisdiction of the Ontario courts.